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NC coal ash legislation could be approved Wednesday

North Carolina is poised to become the first state in the nation to require the closure of coal ash pits that have been operated for decades by electric power companies with almost no regulatory oversight.

Lawmakers could vote on the Coal Ash Management Act as early as Wednesday to create a new coal ash regulatory program that would require Duke Energy to start testing private water wells in January and require replacing drinking water supplies for residents whose water is contaminated by nearby coal ash disposal sites.

The agreement between House and Senate negotiators marks a last-minute revival of a deadlocked measure that Republicans had identified as an urgent priority after a February accident at a Duke power plant disgorged 39,000 tons of sludge and slurry into the Dan River.

After weeks of stalled talks, lawmakers reached an agreement this week on forcing Charlotte-based Duke to phase out the open-air pits at 14 sites that have been leaching contaminants into groundwater for years.

If legislators had failed to agree, the General Assembly would have adjourned this week leaving the issue to fester unresolved until after the November elections. Such a scenario could have made the issue a political liability for Republicans, particularly House Speaker Thom Tillis, who is in a tight race with Democratic incumbent Kay Hagan for her U.S. Senate seat.

The agreement, called a conference report, had been signed by all five House negotiators as of Tuesday and required three Senate signatures before it could be forwarded for votes in both chambers this week, said Rep. Chuck McGrady, a Henderson Republican and the lead House negotiator on the 52-page coal ash legislation.

“The Senate is not in session today, they’re scattered,” said McGrady. “They’re literally taking the conference report to Greensboro and Winston-Salem or wherever.”

Coal ash legislation had already passed the House and Senate but with different details, and it had to be reconciled by the eight negotiators. A draft of the House-Senate compromise version was being circulated Tuesday.

The idea for North Carolina to oversee a coal ash program came in response to public insistence to clean up the state’s 33 open-air pits, in 14 different sites, which collectively hold about 100 million tons of waste ash from coal-burning power plants.

Under the legislature’s timetable, it could take 15 years to close all Duke’s pits and lagoons and dispose of the ash safely. Some environmental advocates had pressed for immediate action because the facilities have been polluting groundwater for years and possibly more than a half-century.

Pending legal action

Meanwhile, the groundwater contamination at the sites is the subject of federal and state legal actions being pursued by the Southern Environmental Law Center. The nonprofit law center has already won a ruling this year from a Wake County judge that the contamination must be cleaned up immediately.

The Wake County court ruling is under appeal, but the legislature’s solution attempts a political override of a local judge’s directive, said SELC lawyer Frank Holleman.

“This is one more effort by North Carolina’s politicians to block enforcement of clean water laws,” Holleman said. “The pattern makes it clear that North Carolina’s politicians are working to protect Duke Energy and not North Carolina’s clean water and communities.”

The environmental law firm, which has pressed for addressing coal ash problems for several years, is assessing the status of its pending legal actions if the legislative proposal is approved this week.

Duke spokesman Scott Sutton said the company will review the coal ash bill “at the appropriate time,” but company officials have said in the past that a 15-year closure timetable is too aggressive.

Molly Diggins, the Sierra Club’s North Carolina director, said the legislation would regulate coal ash as a solid waste for the first time, requiring groundwater monitoring, leaching pollutant collection and liners wherever coal ash is stored in large quantities. Coal ash contains heavy metals that didn’t make it out of the smokestack, including arsenic, lead and sulfates.

The N.C. Department of Environment and Natural Resources also had filed lawsuits and enforcement actions against Duke’s ash pits; under the legislature’s proposed coal ash management plan, the agency would not be sidelined but instead involved in regulating coal ash disposal.

Agency spokesman Drew Elliot said the House-Senate compromise was under review and not ready for comment. But Gov. Pat McCrory and DENR officials had previously objected to provisions that would limit their authority to regulate coal ash.

Six of the coal ash commissioners would be appointed by the legislature, but only three by the governor. And the Coal Ash Management Commission would be housed under the N.C. Department of Public Safety, not DENR, which could only make recommendations to the Coal Ash Management Commission.

The ash pits are operated by Duke and its Raleigh subsidiary, Duke Energy Progress, formerly called Progress Energy.

According to a draft of the bill, Duke must submit a drinking-water well survey by Oct. 1 and begin testing water wells within a half-mile of the boundary of each ash pit site.

Additionally, all Duke power plants would have to convert to storing newly generated coal ash in dry form by 2019.

Prioritized by risk

As for Duke’s existing ash pits, they would be prioritized by risk level for closure by the end of 2019, 2024 and 2029. The law allows one deadline modification per facility, so that Duke is not seeking to extend deadlines indefinitely.

Cassie Gavin, the Sierra Club’s director of government relations, said the coal ash program’s success or failure would depend on the decisions of the Coal Ash Management Commission. “A lot is riding on the ability of the commission to protect the public,” she said.

Prioritizing the sites by risk level was one of the most contentious aspects of the legislation, because some felt it would have been too easy for Duke to assign low risk to most of the facilities and leave the ash where it is. The proposal makes it more difficult to assign low risk to an ash disposal site if it is sitting in groundwater or at the water table, where it is regularly soaked and leaching contaminants, McGrady said.

The proposal also requires Duke to close eight pits at four power plants in Asheville, Riverbend, Sutton and Dan River sites. Duke had volunteered to close those sites but will now be required to do so by law.

“Tightening the low-priority criteria is an effort to make sure there aren’t just these four sites that are cleaned up and all the others are capped and left in place,” McGrady said.

Duke would have several options to deal with its coal ash, he said. The company could haul it to lined landfills that are equipped with proper monitoring and safeguards. It could burn the ash again so that it becomes suitable for use in making cement. Or Duke could sell it as “structural fill” for building roadways.

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